19971216 TZCA Dar es Salaam

INT~~ CCURT OF hPPEAL OF T~NZ~NIA /1T l)t,.~ 'r.S S/\I,,-,.,\M T,\X11TION. r.•::nrnr::NC:t: No •. 14 OF 1995 f:\l~TW8EN AZIM SULEM,\N PRG/.~JI, • • • • • • ·• /\PPLl.C.:/J,11' AND !JR. AMAN 1-J/-,l,Il'J K!if¥)P.OU. (REfERENCE from the nec(sion of a .·Tc1xir.q .1;._ste:.: ,;!' ·i:•~-:- C.--:i•)·':'':. r. l'r,pP..11 rif T;:inzania ul: !);;,= -,~, :-.,.,.,:n'.11) r\atr--,:1 _.the ~.4\: 1, .QilV of l·.'"VCml~E·r., 1995 i, f'' '!.': L.L•o'oeP.l "}l?. 32 I', '1.2 of 1994 () B..J!.._L ING The r1r:ci:-ee holrlcr ir\ Civil Appeal llo. 42 of 1994 pres~nten a Bill of Casis for t~xation. The said Dill consi~led of variou~ items of expeh,:li tut'e. or costs inc1u,:iing_ remuneration to advoca t,~ r; both i-n this Court anrl in the High Court-~ 'IWo prelimihat'y i.ssue.s WP.re taken before the taxing ofpc,·· .. First, it was contender! that sir•ce the ,:'!e.cree holi:ler had. submi tterl r'.11'? 3'.: ('"!-) r•f the Court -:,f /\ppec1l R\.lles, the taxation could not pr:,ceed, Th,1~ r>-.:>i~t was re,i-1ily C")nce,1ed by cou,nsel for the opposite pPr~Y vh0 s~ught ~n ~,:1journment rluring which to prepa~e prP.·sent, as in this case, a ·sir.gle 13ill of Costs comprisirg n mixture of c-,sts arising in both Cour.ts, arr; that l:wo sP.ts of Bills of Costs., Ot"P. t"r!'latir.9 to this Court arrl the other relc1t.i· ., 2 .. to the High Court should have been presented and _taxed oepilratelyJ lndeed the a!-"gument was ad.vanc:ed further that having regard to rule 118 (3Y of the Co~rt of Appeal Rul~~ the taxing officer ·has no ju~isdictioh tb tax 6 Bill of Costs on ~~tteri ~tising ~h · the H1°gh Court uh less. the Bill was fie-st presented· and taxed in the High court. The taxing officer overruled ·the second preliminary issue and too~ the view that he. had power to hx the Bill of Costs though it was not pre~ent~d end taxed in the not High Court first~ Howev~t in the. partkule.t case -h 7 did,Lproceed 0 to ta~ the same because ·thei:-e had beeh ho drawn .up o_rder ih terms of ru1~ 39 (2) of tl)e Courl of Ar,pc.:il hulczi Ile at!cordingly. directed pr-eparatie>h of ,the .cic-af t order. fot ap!)l:-cival~ It is from that decision that this reference now arises. J\.t the hearing of the reference Mr. ·N.- Ksel·em~ J..earned ::.;·. ,·adV,OC o,te, a,ppeare-cl in SUI)po-rt of the refGrence while the .·•·· .. ,tespond.ent· tt>ereto wos ndvocn teci for by Mr.· a. Maknnit lQorf'l8d advocote. · : •hac;i power. to. tai< th~ Bill of Coe ts- as preiser,b;id comp.r;ising, as it 0 did,. a mixture of cos ta arisin-:," in the High Court and those a.r;i~,\t g 0 ir:i. trµ.~ Court. Mr. Mselem ~J)f!ate<l oubstantiall-Y the erguments which ·hg harl a~.vonced before the· taxing officer. The pow.er of the Registrar or Deputy Registrai:-· of the Court of /\ppeal. as o taxing officer is conferred by rule 118 of t.he Court of Appeal Rules.· That rule s·oys:- · •.. /3 ;._ J 11 118 (1) The Registrar. sl{all. be a taxit1g Officer· with pow1a· to tax the costsi - ~s be~ween p~rt~-an~ p~rtYi of o.t ari•sing out of any applicatioh o'r appeal to -the c:!ouft~ accor.d;,incr- wj ~'.: l:r,ii ru.'!.,_.,; ahci .scale..S: :'!et oul in lhe •rhJi:d Sell': Id)" ~,:, these Hules. {i). The remuneralion ~fan advocnte ·by his client in respect of _any a_pplica- tion or appeal shall b~ subject ~o · taxatioli ·i·n the High Court and. shall .() be governed by the rules and scales applicable to proceedings in that couz::t. ". It is fairly apparent that th@ power of a taxing officer un~er sub-ru1e (1) is fimited to taxing costs arising out of applications or appeals :to ·the C~~~t of Appeal. That is the plain and ordinary meaning of that sub-rule, anc:l I 'can find no ju,stificatior:i for placing any other cohstruc:tion "'on· ·tlie provision. The co_rol1ary then 'is 'that ~osts arising· in the High Court are taxed by_ the Registrar··or ·oeputy Re<]istrar of the High Court in his capacity as .tax~_nQ. ..o~ficer of th.at court, i:i~"provJ.i:led for unde·r rule 3. 0 of the Advocates'. Remuneration· and Taxation of· Costs Rules (Gov~rnrrent·'Notice' 'No~,: 515 of 1991) ~ :, · · Thus r·:think ·that Nr. Mselem is·right in· his contention that a sih:o·f.Cost·~·presented'in the court·of Appeal-should not co.ntain iteitis"of cos:ts· arising in the 1-ligh Coutt:, because as far as I couicf gather· there· is• nothihg· in the -~?'::11:t of Appeal Rules empowering. a· taxing ofl'ic·e·r of the Court of Appeal to tax suc;h costs~ It seems· that two .sets of', Bills of Costs ought to be ' ••• /4 ptese11ted __ ~nd ·taxed sepai;-ate.ly. 1 one relating to _costs arising in the i-liqh Co~~t ano \:he othc~- relatirlg to thos_e arising in this Court. ihdecd quil:e a·par~ frcihl ;u,y.ing that the iJower of a taxii;g officer Pt the_ Court of llpp~al ·1s limited to applications ! ' . and app•~ls to thi 2oGrt of -~ppeii;· such dichotofuy as referred to aboVej ..'vi.1.1.d bt! consi steht wlth. tJ-,e oi:·clerly procedure en·.ric;;iged by the two s(1,ts of Rules1 wherciby in terrtts of rule 119 ( 1) O!" the Court of /\pp~al Rules a person dissatisfied with the decision of a ta?(ihg officer of the Court 6f Appeal muy refer the decision to a Judg~ of the Court 6f Appeal; whereas under rule 5 ( 1) of 0 the /\ovocate15i k~muheratioh anci Taxatio~ of Costs Rules (Governm.-~nt Notice No~ 5-l.9 or 199il · a p~rson who obj~c_t_s lo th1:: di:ds~nn of a taxing officer of the. High Court inay refer lhe decision to a judge of the Hi.~h Court. ±I: makes g_ood sens-e I. I think, to say that costs ah;i;,g in the iilgh Court should be taxed in that '. . court ahd appeals, if a_ny 1 be referred to a judge of .that court. It is sni()other ahcl more orderly" that way than to say that such costs shduld be taxed in the Court of /\ppeal and appeals, if any, to be referred to a Judge of the Court_ of Appeal. A inot'.e dif/icu.it problem arises ·in relation to sub-rule (3) 0 .:. of rule .118 of the c:i,ui-t of Appeal Rules whic~, for ease of :" ·.. : .~ reference I may be re-stated as follows:~ ii(J) The r·emuheration of an. advocate by his client in respect of any application or appeal shall, be subject to taxation in the lligh Court and shall be governed by ·the rules and scales applicable l:o p1~occeclin')n :1.n thnl: co11i:-t." •• ,/5 s. Both Nr. Msele~ aPrl Mr. Makani were of the view that the sub-rule gi~es ris~ to ar ambiguity. BecaOse on~ way of construing it i~ ~hat r~muneration of a~ arlv6cate by his cli~nt in respect of /lpplicat~.ons_ or atrpeals ·to the Court of Appeal are to JJe. taxer! in the High Court·, ii' aci:orrlance with the ArJvocotes·•· Remuneration anr:I Taxatior. of Costs P..ules (Government No\:ice No, 515 of· 1991). Yet if is not possible to See ho~ the Re9istrar or Oeputy Registrar ot the Court o.: i,µp<:sa'l ::a,~ fir-4 his way ir,i:.v U-,1:! High Court ancl ~unUuct the taY~tian there. -On the other hand rules 107 ancl 11~ of the Court of Appeal Rules empower the Court of Appeal to assess costs, w!)ich is not eas.Uy reconcilable with the. power of taxation . . . of costs exercisable by a taxing officer unrler rult:! 118 · (3) of. the 0 Rules. Both coun:el, therefore asked for a ruling ar.d guidance or the matter.· The taxing officer. who ·han,Herl the matter ·giving rise to this reference had construed sub-iule (3). reprofluc',!rl above as f.ollows:- "In my view the wornirq shall be sub.iect ):o t~~ation m',!-ans we have to take into coPsirl,eration w_hat the High Court harl taxerl but Pot necessarily (that) it must fir~t _be :taxed i~ th~ High Court. In other words the Taxing officer·may procee~ withou~ first waiting for the 0 matter (to) be taxed in the High Court. II \ With due respect, how2ver; this- construction seems untenable. For, as pointed otit earlierr the powers of a taxing officer, in terms of ~ule 118 (1) of the Court of Appeal Rules, ar~ limited to taxatior of cos_ts arising· from applications arr appeals to the Court of Appeal. I could not riscovP.r any provision of the ••• /6 6 Rlll'e_s; and n_<;>n~ was.1.:~fe_trr?d to-me; which ·aufho.tise§ a tax.1.ng ~!ficer of: the C_ourt. ~} A~~eal to tax ·co_st~ ~i:-fsing fr6hi matters _lh the High Court. As m"aae amply cl~ar ifr l:he: p.l'ece(i.i.~g j).l.!ragraphs I i think· the corrf!ct procedure is. to p1·cs~nt se-~)1irbt1fry two Bili::; of ·costs, one in respect: __of costs arising ih the High Court and ' \ . . the other in respect of :.:iose adi:J.ng 111 th,;,, Cc'>urt of Appeal', and the t·..;-:- al.c to be taxt?d separat:r?ly t-)' ;_;, .. taxing uff1cer§ of the kespecti~e Courts, with the appeal or reference; ·if ariY1 l~ihg ~o ti judge of the' High Court and to a single Judge of the Court: of AIJP,Ef!.al- 1 rtd;P,~·c t1 vel Yf To m.y 1nl't-id'> sub--.ru_le (H of ru.le 118 quol:e_d above applies ~') 0 si.t"uations . .. where . ·- .....; the ad\i~~t~ . . .handling .. "'the 13pplicatlon. or .appel:11 in the·.Courf ofAheal h~d al;o handied.th~-mattei:- i.'~·t,he High Court, ih w1-'ilch case the l:-eii1uneration of such advoc~te by his clltint in respect of such_ appl\;=atlon or appeal has to be ptesent:ecl . and taxed ln the ~lgh Coul:t 'in ~cc~rciarice w1 th the Adl/Oca\:es 1 ' Rernuhe r~-tioh ~tid Tiixation of Costs Rules ( Governmeht Notice. No, 515 of 1991) • I ah\ pe.i:'t;uaded to this view having regard l:o rule i'M (3) ._of the Court of Appeal for t 9 st Africa Rules 1?72 from which our present rul-e 118 ( 3) aboye origi"na t.e 6 • That provision say~: .. 11(3) The .i;'e~uneration of ali advocate by 0 his cl~~-_nt in• respect of any suqh appl.i.ca:Hon or appeal (to the Court) s~all be subject to taxation in the superior court of the Partner State . in which he w~s retained. and shall qe, governed by the rules and _sdales -applicab~e to proce~din~s in· that court~-" ••• /7 1 ~d~pting ~hii provision'to out brescnt set tlp 1 i~ me~hS th&t slich temuheration is l:o be taxed in- th~ iligh C:dtlrt in which \:he: ·., ~dv~c!ate ~oncerned WuS r'=tained for the. matter giV·ii,g i:'ise to th~ relevant application or appoal to the dourt _of 11ppe~1: Where the advocate concerned wus riot so retainer.I !Jut Wfls retc1iMd ~nly fot· th!:! first time to handle th1:: api:-1.:l~;d'.ioh or appeal !.11 . Court of /\('lpeal I chen L-emun,~ral:.i.on. is l:o be taxcu by a taxing dfficer of the Court of Appeal. In the ins_tant c~se I howevei:-; Mr; Makahi and Mr. 13oc1z 10.arn~(l advocates who jointly filed the al'h of Costs in question harl al so beeri· rel:ain~d t~ harictie the> 0 mi~ter in ~he High Court.~ Therefore, if t~e iriterpreta~iori l haYe put on rule 118 (3) cf the Court of i~p@al ~~ies is cor~ect, then the remuneration to them shoulrl be taxed in the lligh. Court . .~ . . in accordance with the Advocates' Remuneration a·nd Taxation.of Costs Rules (Government Notice No. 515 of 1991). i .II/ • > I find little. or no substa~Ce ih counsel submission that · the power o.f the Court of Ar,pea1 to· assess costs· uhoer rules 107 shd. 115 ot the Court of /\~peal Ruins is irreconcilable with th~- power of· taxation of costs exe.tcisablP. by a taxing officer uncler slib--.t"\,llC (3) of n:ile 1'18 of the Rules. :Under ~u-les 1~! a~d-: 115 the Court of Appeal Cah_ either ,fssess costs or direct taxation of them •. It seems that where the ·Court itself assesses the costs,· it can no longer direct taxation of the same. So that in my _view the Court cif Appeal can properly make an order for costs under rule 107 or: 115 1 without assessing· them, and direct the ·taxation of those cost~ without at all infringing upon or conflicting with the powers of a taxing officer exercisable under sub-rule (3) of ... /8 ·. / 8 In th~ result the reference is, 'therefore·_, al-lowEid • . ·The decisfon of_: t).1c t_axing officer _is ,set -aside with instructions_ tha_t two sets of Bills of Costs be· presented and. taxed separately • • ·; : •~ I as: indicated ... above. ./ The respondent. to this reference .!ihall beat DAR ·Es SALAAM this 16th day of oecember, 1997. 0. R.H. KISANGA JUSTICE or APPEAL _I -c9rti:f.'y ttlat this- is· a. true copy of the original. , 1 -/<t·t•-: ( M.S. SHAN ALI) DEP.UTY REGISTRAR 0